International law, Sixth edition
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International Law MALCOLM N. SHAW
Law: Collected Papers, Cambridge, 1970, vol. I, pp. 488–9.
50 See e.g. the Anglo-Norwegian Fisheries case, ICJ Reports, 1951, p. 116; 18 ILR, p. 86 and the Nottebohm case, ICJ Reports, 1955, p. 4; 22 ILR, p. 349. j u r i s d i c t i o n 657 other zones and on the high seas where the state is the flag state of the vessel. 51 As modern communications develop, so states evolve new methods of dealing with new problems. In the case of the Channel Tunnel, for ex- ample, providing a land link between the UK and France, these countries entered into an agreement whereby each state was permitted to exercise jurisdiction within the territory of the other. The Protocol concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Pub- lic Safety and Mutual Assistance relating to the Channel Fixed Link was signed on 25 November 1991. 52 Under this Protocol, French and UK frontier control officers are empowered to work in specified parts of one another’s territory. These areas are termed ‘control zones’ and are located at Cheriton, Coquelles, on board through trains and at international rail- way stations. The frontier control laws and regulations of one state thus apply and may be enforced in the other. In particular, the officers of the adjoining state shall in their exercise of national powers be permitted in the control zone in the host state to detain or arrest persons in accor- dance with the frontier control laws and regulations of the adjoining state. Article 38(2) of the Protocol provides that within the Fixed Link (i.e. the Tunnel), each state shall have jurisdiction and shall apply their own law when it cannot be ascertained with certainty where an offence has been committed or when an offence committed in the territory of one state is related to an offence committed on the territory of the other state or when an offence has begun in or has been continued in its own terri- tory. 53 However, it is also provided that the state which first receives the person suspected of having committed such an offence shall have priority in exercising jurisdiction. Another example of such cross-state territorial jurisdictional arrange- ments may be found in the Israel–Jordan Treaty of Peace, 1994. Annex I(b) and (c) of the Treaty, relating to the Naharayim/Baqura Area and the Zofar/Al-Ghamr Area respectively, provides for a special regime on a temporary basis. Although each area itself is recognised as under Jordan’s sovereignty, with Israeli private land ownership rights and property 51 See above, chapter 11. 52 The Protocol was brought into force in the UK by the Channel Tunnel (International Arrangements) Order 1993: see e.g. UKMIL, 64 BYIL, 1993, p. 647. See also the Protocol of 29 May 2000, UKMIL, 71 BYIL, 2000, p. 589, and the Eurotunnel case, partial award of 30 January 2007, 132 ILR, p. 1. 53 This is in addition to the normal territorial jurisdiction of the states within their own territory up to the frontier in the Tunnel under the sea, article 38(1). 658 i n t e r nat i o na l l aw interests, Jordan undertakes to grant unimpeded entry to, exit from, land usage and movement within the area to landowners and to their invitees or employees and not to apply its customs or immigration legislation to such persons. In particular, Jordan undertakes to permit with minimum formality the entry of uniformed Israeli police officers for the purpose of investigating crime or dealing with other incidents solely involving the landowners, their invitees or employees. Jordan undertakes also not to apply its criminal laws to activities in the area involving only Israeli nationals, while Israeli laws applying to the extraterritorial activities of Israelis may be applied to Israelis and their activities in the area. Israel could also take measures in the area to enforce such laws. 54 Thus although jurisdiction is primarily and predominantly territorial, it is not inevitably and exclusively so and states are free to consent to arrangements whereby jurisdiction is exercised outside the national ter- ritory and whereby jurisdiction by other states is exercised within the national territory. 55 A rather more unusual situation developed with regard to persons detained by the US in Guantanamo Bay Naval Base, situated in a part of the island of Cuba leased to the US pursuant to agreements made in 1903 and 1934. Following the conflict in Afghanistan in 2001 and thereafter, persons were taken to and held in Guantanamo Bay, which the US initially argued lay outside federal jurisdiction, being under US control but not sovereignty. 56 The Supreme Court, however, in Rasul v. Bush held that District Courts did have jurisdiction to hear petitions challenging the legality of detention of foreign nationals who had been detained abroad in connection with an armed conflict and held at Guantanamo Bay. 57 54 See also e.g. the treaties of 1903 and 1977 between the US and Panama concerning juris- dictional rights over the Panama Canal Zone and the NATO Status of Forces Agreement, 1951 regulating the exercise of jurisdiction of NATO forces based in other NATO states. The Boundary Commission in Eritrea/Ethiopia noted that it was not unknown for states to locate a checkpoint or customs post in the territory of a neighbouring state, Decision of 13 April 2002, 130 ILR, pp. 1, 112. 55 Jurisdiction, and its concomitant international responsibility for acts done in the exercise of that jurisdiction, may also exist on the basis of the acts of officials committed abroad and on the basis of actual control of the territory in question in specific contexts. 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